(PC) Mungia v. Sheriffe Department ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC MUNGIA, No. 2:21-cv-1641 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 SHERIFF’S DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff, a county jail inmate proceeding pro se, filed a civil rights action pursuant to 42 19 U.S.C. § 1983. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requested leave to proceed 20 in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by 21 Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis is granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 1 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 3 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 4 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 5 § 1915(b)(2). 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 27 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 28 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 1 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 2 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 3 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 4 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 5 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 6 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 7 Plaintiff’s Complaint 8 Plaintiff raises two claims. First, he alleges he was denied the right to make a phone call 9 to his attorney. Second, he alleges that defendant Officer Kanemoto singles plaintiff out for cell 10 searches every week, took plaintiff’s bowl he purchased from the canteen, and complains that 11 guards do not change their gloves between mods. 12 Discussion 13 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) 14 under color of state law (3) deprived him of federal rights, privileges or immunities and (4) 15 caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) 16 (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 17 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the 18 conduct of a particular defendant and he must allege an affirmative link between the injury and 19 the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 20 Denied Phone Call 21 Pretrial detainees retain a right protected by the First Amendment “to communicate with 22 persons outside prison walls.” Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002). Use 23 of a telephone is but one means of exercising this right. See id. This right may be restricted if the 24 limitation is “reasonably related to legitimate penological interests.” Id. (quoting Turner v. 25 Safley, 482 U.S. 78, 89 (1987)). Although plaintiff indicates that he was not allowed to call his 26 attorney on one occasion, plaintiff did not allege that he lacked other means of communicating 27 with the attorney, for example, by writing a letter or by the attorney visiting plaintiff. Plaintiff 28 does not state that he was unable to call the attorney later, or the next day. Therefore, claim one 1 of the complaint fails to state a First Amendment claim. 2 Plaintiff does have a fundamental constitutional right of meaningful access to the courts. 3 See Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011), overruled on other grounds by 4 Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015); Ching v. Lewis, 895 F.2d 608, 609 5 (9th Cir. 1990) (“The opportunity to communicate privately with an attorney is an important part 6 of that meaningful access.”). However, “[t]o establish a violation of the right of access to the 7 courts, a prisoner must establish that he or she has suffered an actual injury.” Nev. Dep’t of 8 Corrs. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). Actual injury is “actual prejudice with 9 respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to 10 present a claim.” Id. (quoting Lewis v. Casey, 518 U.S. 343, 349 (1996)). In order to establish 11 actual injury, the inmate must show that some official misconduct hindered his efforts to pursue a 12 nonfrivolous legal claim. See Lewis, 518 U.S. at 351, 353 & n.3. Moreover, the right is limited 13 to “the capability of bringing contemplated challenges to sentences or conditions of confinement 14 before the courts.” Id. at 356; see also Simmons v. Sacramento Cty. Superior Court, 318 F.3d 15 1156, 1159-60 (9th Cir. 2003). 16 Here, plaintiff claims he needed to make a very important call regarding his case and his 17 attorney was expecting his call, but plaintiff did not indicate the nature of his case, or how this 18 one denial of communication with his lawyer prejudiced him. (ECF No. 1 at 3.) Moreover, 19 plaintiff includes no facts demonstrating he sustained an actual injury from this one-time 20 deprivation. Accordingly, plaintiff fails to state a claim based on deprivation of access to the 21 courts. 22 Harassment 23 Plaintiff’s claim that defendant Kanemoto is harassing plaintiff by conducting weekly cell 24 searches fails to state a constitutional claim. Allegations of harassment, embarrassment, and 25 defamation are not cognizable under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 26 1345, 1353 (9th Cir. 1981), aff’d sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also 27 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1982) (allegations of harassment with regards 28 to medical problems not cognizable); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) 1 (Arkansas state prisoner does not have cause of action under § 1983 for being called obscene 2 name by prison employee); Batton v. North Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) 3 (mere verbal abuse by prison officials does not state claim under § 1983). Nor are allegations of 4 mere threats cognizable. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does 5 not constitute constitutional wrong, nor do allegations that naked threat was for purpose of 6 denying access to courts compel contrary result). 7 Plaintiff claims that defendant Kanemoto singles plaintiff out for weekly cell searches, but 8 plaintiff does not explain why he believes the officer is singling plaintiff out. For example, he 9 does not indicate how frequently other inmates’ cells are searched. In addition, cell searches are 10 performed frequently and randomly for security reasons. Plaintiff alleges that defendant 11 Kanemoto took plaintiff’s bowl purchased from the canteen, but plaintiff provides no facts 12 surrounding the confiscation of the bowl that would suggest Kanemoto was acting with an 13 improper motive. 14 Finally, plaintiff claims that officers fail to change their gloves between mods, which he 15 contends poses a COVID-19 risk. However, the Center for Disease Control and Prevention 16 stated: 17 [t]he principal mode by which people are infected with SARS-CoV- 2 (the virus that causes COVID-19) is through exposure to 18 respiratory droplets carrying infectious virus. It is possible for people to be infected through contact with contaminated surfaces or 19 objects . . ., but the risk is generally considered to be low. 20 “SARS-CoV-2 and Surface (Fomite) Transmission for Indoor Community Environments,” 21 Centers for Disease Control and Prevention, (Apr. 5. 2021), accessed January 15, 2022 . While the officers’ failure to change their gloves is concerning, plaintiff’s 24 allegation fails to state a cognizable civil rights claim. 25 For all of the above reasons, plaintiff’s complaint must be dismissed. The court, however, 26 grants leave to file an amended complaint. 27 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 28 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 1 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 2 each named defendant is involved. Rizzo, 423 U.S. at 371. There can be no liability under 42 3 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions 4 and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th 5 Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil rights 6 violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This requirement exists 10 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 11 v.County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 12 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 13 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any 14 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 15 and the involvement of each defendant must be sufficiently alleged. 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 18 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 19 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 20 §1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 21 Sheriff of Solano County filed concurrently herewith. 22 3. Plaintiff’s complaint is dismissed. 23 4. Within thirty days from the date of this order, plaintiff shall complete the attached 24 25 Notice of Amendment and submit the following documents to the court: 26 a. The completed Notice of Amendment; and 27 b. An original of the Amended Complaint. 28 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 1 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 2 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 3 Failure to file an amended complaint in accordance with this order may result in the 4 | dismissal of this action. 5 || Dated: January 19, 2022 Foci) Aharon tongs UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ISAAC MUNGIA, No. 2:21-cv-1641 JAM KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 SHERIFF’S DEPARTMENT, et al., 14 Defendants. 15 16 Plaintiff hereby submits the following document in compliance with the court's order 17 filed______________. 18 _____________ Amended Complaint 19 DATED: 20 ________________________________ 21 Plaintiff 22 23 24 25 26 27 28